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Monday, December 21, 2015

The forum shopping by Chevron's General Counsel R. Hewitt Pate in Gibraltar to evade the company's $10 billion Ecuador liability seems to have backfired. We understand the desperation: largely under Pate's watch Chevron has spent an estimated $2 billion on 2,000 lawyers and 60 law firms in a futile attempt to fend off impoverished villagers who in 2013 won a historic environmental judgment against the company.

Now, Chevron might have to explain Pate's apparent market manipulation to the Securities and Exchange Commission.

The question arises: is Pate putting out misleading press releases to try to save his own skin in the face of increasing angst over the Ecuador liability from Chevron's Board? Or does Chevron's Board actually sanction what appears to be market manipulation from its General Counsel?

The latest misleading Chevron press release -- issued last week with a juicy quote from Pate himself -- had the following headline: Supreme Court of Gibraltar Rules Against Donziger Offshore Company; Awards Chevron $28 Million.

Let's break it down and assess whether the latest Chevron press release violates the holy grail of securities law which requires a company to be completely honest about any material issue in all of its public statements.

First, we note that the "Supreme Court" of Gibraltar as described by Pate is not really a Supreme Court. The Gibraltar court for purposes of this case consisted of one solitary trial judge. This judge was required by law to rule in favor of Chevron because the case was not defended.

Second, Gibraltar is not a real country. It is a tiny British protectorate of only 30,000 citizens that occupies 2.6 square miles of territory connected to Spain on the southern side of the Iberian Peninsula. A relic of the British Empire, Gibraltar is so small the country's main road doubles as an airport landing strip.

Nevertheless, the elected leader of Gibraltar refers to himself as "Prime Minister" while the local trial court is called a "Supreme Court". Pate thought he would pull a fast one and make it seem like the ruling was a considered decision by several top-ranking appellate justices from a real country; it was decidedly not.

As the villagers pointed out in a devastatingly funny press release, the entire territory of Gibraltar is less than half the size the rural town of Ocala in North Florida. We suspect justice is probably more fair in Ocala than in Gibraltar, but that's a story for another day.

Third, the so-called default "award" is utterly worthless to Chevron. It came against an entity called Amazon Recovery Limited, or ARL. ARL has no money and will never have money. The villagers set up ARL in 2012 to collect the proceeds of their historic judgment that Chevron refuses to pay, despite orders that it do so from the Supreme Court in Ecuador. Given Chevron's targeting of ARL, the villagers long ago said they would no longer use it for its intended purpose nor waste their limited resources defending it.

The purpose of creating ARL in Gibraltar was to ensure that no official in Ecuador's government or in Chevron could interfere with the proceeds before a clean-up could take place. This is understandable given Chevron's history of trying to sabotage and corrupt the proceedings in Ecuador. That plan as envisioned by the villagers obviously did not work because of Chevron's latest subterfuge.

Luis Yanza, an Ecuadorian community leader and a director of ARL, explained it does not matter. "We are too smart to get sucked in by Chevron's abusive attempts to tie up our lawyers in irrelevant proceedings which the company uses to distract attention from its legal obligations to those it harmed," Yanza said.

(For more on Donziger's point of view, see these counterclaims he filed against Chevron outlining the company's long history of illegal behavior in Ecuador.)

Again, we understand Pate's frustration. Donziger works alone out of his apartment in Manhattan while Pate pays dozens of law firms to try to destroy the Ecuador case by targeting him. Everything Pate has done to try to try to bring down Donziger, including an open-ended espionage campaign and launching what is probably the most expensive retaliation campaign in U.S. history, has come up short. Pate initially had Chevron sue Donziger personally for $60 billion dropping all damages claims out of fear a jury would rule against the company.

As the villagers point out, Donziger was not a director of the company against which Chevron has its illusory default judgment in Gibraltar. Nor did he participate in a single meeting. The directors were Yanza, two other villagers, a representative from the internationally respected accounting firm Grant Thornton, and a British barrister. So why other than market manipulation would Pate call it a "Donziger offshore company" in the headline?

In the latest press release from the villagers, Donziger described Pate's strategy better than we ever could:

Pate forum shopped the world to extract a judgment from an irrelevant jurisdiction that commands no respect on the global stage in a case that was understandably and quite properly never defended on the merits because it does not matter. The Gibraltar judgment has zero value to Chevron other than as a public relations stunt to distract attention from its growing financial risk due to advances in enforcement actions targeting company assets in Canada and elsewhere.

Donziger added there was element of racism to Chevron's attempts to discount the ability of the villagers to govern their own affairs:

Pate and his colleagues in Chevron act as if no indigenous person from Ecuador's rainforest has either volition or intelligence. They seem to believe the villagers are simply dumb people manipulated by outsiders. I understand this mentality because that's how Texaco viewed the Ecuadorian people when it deliberately destroyed their lands and waterways. Today, that approach reeks of racism. It is also based on patently false assumptions as anybody can see by simply talking to the internationally recognized community leaders who have battled Chevron so successfully for years.

Chevron shareholders whose dividends are under threat might note that the $28 million default judgment was to obtain partial reimbursement for the exorbitant fees Pate paid to the law firms the company has used to attack the villagers and Donziger. Bills submitted in Gibraltar showed some of these lawyers were charging more than $1,200 per hour to carry out the campaign.

Pate, who earned almost $8 million from Chevron the year he lost the Ecuador case, has gotten in trouble before by trying to make Chevron's litigation position appear stronger than it is. In 2013, Pate put out another press release falsely trumpeting a decision from a private international arbitration as a "victory" in the Ecuador litigation when in fact it was nothing of the sort.

In 2012 and 2013, Pate also had no answer for detailed reports submitted to the SEC showing Chevron was deliberately misleading shareholders about its growing risk in Ecuador. Those rather harrowing reports of company malfeasance, which prompted a shareholder revolt against CEO John Watson at the 2013 Chevron annual meeting, can be read here and here.

The SEC failed to catch the rather obvious market manipulation before the 2008 financial meltdown. Maybe the agency will do something this time to protect Chevron's shareholders and the financial markets from the obvious misconduct of Pate and other top-level managers.

Wednesday, December 16, 2015

Chevron's illusory $28 million judgment for legal fees against an empty shell investment vehicle owned by Ecuadorian villagers in the tiny protectorate of Gibraltar is worthless -- despite the attempt by Bloomberg's Paul Barrett to build it up with his incomplete and dishonest reporting.

After largely ignoring the stunning legal setbacks to Chevron in recent months in Canada and elsewhere regarding the $9.5 billion Ecuador pollution judgment against the company, Barrett this week posted a story about how Chevron won a default judgment in Gibraltar. Gibraltar has only 30,000 people and four trial judges.

Nobody defended the company because the entire litigation is part of Chevron's nefarious effort to entrap the villagers in meaningless cases in irrelevant jurisdictions. Chevron wants to suck the villagers into doing anything except what really matters -- which is seizing company assets to pay for a long-awaited clean-up of lands where the oil major dumped billions of gallons of toxic waste.

In a misleading press release parroted by Barrett on the Businessweek website, Chevron General Counsel R. Hewitt Pate claimed the "Supreme Court" in Gibraltar ruled in favor of the company. What Pate didn't tell Chevron shareholders is that the Supreme Court of Gibraltar is actually a trial court with fewer judges than most small towns in America.

The dormant investment vehicle targeted by Chevron was used years ago by the company's victims in Ecuador to fund the prosecution of their environmental claims against the oil giant. The villagers also planned to use it to aggregate proceeds of the judgment that would come with selling off Chevron's seized assets. The idea was to distribute the proceeds for an environmental clean-up in Ecuador without the Ecuadorian government interfering with the process.

The villagers chose not to divert their limited resources from Canada, where they have a real chance of collecting the entirety of their historic judgment. Chevron has $15 billion worth of assets in the country and the Supreme Court recently gave the green light for the villagers to go after them, dealing a devastating blow to Pate's blocking strategy.

"We must be disciplined and focus on seizing Chevron assets to force the company to comply with orders from the courts in Ecuador where the company insisted the trial be held," said Luis Yanza, an Ecuadorian community leader. "We will not fall into the trap of defending against frivolous cases that Chevron chooses to initiate in irrelevant jurisdictions."

With the help of corporate sympathizers in the journalism world like Barrett, Chevron's beleaguered management team is using the Gibraltar ruling to try to present a false picture of "progress" in the litigation. That is all part of an attempt by Pate and Chevron CEO John Watson to keep company shareholders and the financial markets from belching too loudly about the company's growing risk in Ecuador.

Chevron is on its heels in Canada and in the United States. Chevron's star witness in its retaliatory "racketeering" case in the U.S., Alberto Guerra, recently admitted lying on the stand to try to frame New York lawyer Steven Donziger in a bribery scheme in Ecuador. In apparent violation of federal law, Chevron had paid the witness $2 million for his testimony. Chevron lawyers coached Guerra for 53 consecutive days before allowing him to present his false testimony.

A concrete example of Barrett's dishonesty is how he used only a small portion of a written statement given him by Yanza, the internationally renowned Goldman Prize winner. The statement explained why the Gibraltar judgment has no impact on the case.

Here is Yanza's full statement as sent to Barrett:

Chevron's default judgment is against a dormant investment vehicle. We believe this judgment has zero value other than as a public relations stunt designed by Chevron to project the false appearance of 'progress' in a litigation where the company recently suffered multiple setbacks, including an admission by its star witness that he testified untruthfully in the RICO case and a decision by Canada's Supreme Court allowing our communities to try to seize company assets

While after two decades of litigation Chevron has yet to pay even one dollar to the thousands of people in our country that it harmed, it is no small irony that Chevron rushed to a courthouse in a far-flung jurisdiction to try to collect millions of dollars in fees that it has paid to its army of lawyers. Rather than engage in a multi-jurisdictional campaign of evasion, Chevron's management team would better serve company shareholders by complying with the Ecuador judgment so that the humanitarian crisis afflicting our communities can be addressed immediately.

This is the only part of Yanza's statement that Barrett quotes in his story:

While after two decades of litigation Chevron has yet to pay even one dollar to the thousands of people in our country that it harmed, it is not small irony that Chevron rushed to a courthouse in a far-flung jurisdiction to try to collect millions of dollars in fees that it has paid to its army of lawyers.

Journalists of course have a right to use only parts of statements in their stories. But Barrett's long history of uncritical service to Chevron's narrative understandably makes us skeptical of his motives. In an obvious conflict of interest, Barrett last year testified in favor of Chevron before the U.S. Congress while reporting on the case.

Barrett's latest article repeats yet again a false thematic narrative almost always found embedded in his reporting. Barrett suggests that Chevron's retaliatory racketeering case against Donziger and his clients in the U.S. somehow amounts to an "exoneration" of the company's environmental crimes and fraud. Nothing could be further from the truth.

The reality is that Chevron made a mockery of justice in the RICO proceeding. The trial judge, Lewis A. Kaplan, arrogantly disparaged the affected communities and excluded any evidence of Chevron's toxic dumping in Ecuador. He also refused to seat a jury and then accepted the paid-for testimony of Guerra, Chevron's discredited witness. The judge knew nothing of Ecuadorian law or procedure and let Chevron abuse the process throughout.

Ultimately, the RICO judgment -- like the default judgment is Gibraltar -- does nothing to mitigate Chevron's risk from it pollution in Ecuador. But with Barrett promoting these judgments with a fundamentally false narrative, they do allow Chevron yet another bite at the apple on the public relations front.

That false hope is a major factor that allows Chevron's management team to spend millions on its army of lawyers to keep the litigation going even after it lost the case in its preferred forum.

Good work, Paul. As we have said before, you could make a lot more money by joining Chevron's public relations department.

(For more background on Barrett's distortions of fact and made-up scenes in his book about the Ecuador case, see this "notice of defamation" letter sent to him and his publisher. For a summary of the overwhelming evidence against Chevron in Ecuador, see here.)

According to numerous independent media outlets, Chevron indeed polluted the crap out of Ecuador's Amazon region.

We have long known that three layers of courts and eight appellate judges in Ecuador unanimously confirmed Chevron's responsibility for causing the extensive oil pollution found in the affected area. Less known is the array of respected journalists who independently have confirmed the evidence against Chevron by observing the damage with the naked eye.

These journalists include Scott Pelley of CBS News; Frank Bajak of the Associated Press; Simon Romero of the New York Times; Juan Forero of the Washington Post; and Patrick Radden Keefe of The New Yorker, among others.

Chevron, in what has to be one of the all-time great examples of a corporation sticking its head in the sand, continues to deny it has caused a major pollution problem in Ecuador. While those indigenous and farmer communities affected continue to suffer from high cancer rates, the company has refused to pay the $9.5 billion environmental judgment needed for a clean-up.

Chevron's position that there is "no problema" in Ecuador has no credibility.

Here is a brief summary, culled from the archives of from several major media outlets, of how Chevron impacted and continues to harm the environment in the area where it operated (under the Texaco brand) from 1964 to 1992.

"Well, it rains here in the rainforest all the time, so there's water pouring out of [the waste pit] now. And if you smell the water, you can clearly smell the oil pollution in it. Runs right down the ravine... and right down into the stream, not 50 yards that way."

"Waste pits like those left behind by Chevron are supposed to be temporary and isolated from fresh water but in Ecuador one pit 60 Minutes saw has been there for 25 years and we found it's actually designed to overflow into streams."

Clifford Krauss and Simon Romero, writing in The New York Times in 2009:

Romero visited Chevron's waste pits and found that "black gunk from the pits seeps to the topsoil here and in dozens of other spots in Ecuador's Northeastern jungle."

"Evidence of [ChevronTexaco's] contamination is unavoidable at well sites near Lago Agrio and other towns in the region."

"Some pools of waste dug by Texaco combining noxious drilling mud and crude oil still lie exposed under the sun, seeping into nearby water systems."

Columnist Bob Herbert, writing in The New York Times in 2010:

"What's not in dispute is that Texaco operated more than 300 oil wells for the better part of three decades in a vast swath of Ecuador's northern Amazon region... Much of that area has been horribly polluted."

Juan Forero, writing for the Washington Post, 2009:

"After a walk along a forest trail, [the guide] stopped at a pool that had been used by Texaco and poked a long stick into the black sludge. Waste also dripped out through a drainage pipe and ran down to a creek below."

"Chevron acknowledges that Texaco used unlined waste pits."

Patrick Radden Keefe, The New Yorker, 2013:

A guide for Keefe dug up "a fistful of black mud and held it so that the sunlight caught the telltale blue-orange tint of petroleum. At one fetid pit... he stepped gingerly onto the surface of the pool, where the solid matter in the produced water had congealed into a tarlike crust that was sturdy enough to support him. Smiling a little, [the guide] shifted his weight from one foot to the other, until the whole surface began to undulate beneath him. He looked like a kid on a waterbed."

"[The guide] led us down a steep ravine to a creek. In the gauzy light filtering through the canopy, the water, which was only a foot deep, looked crystalline. [The guide] drove a stick into the creek bed and churned the mud until the water grew clouded by sediment... I skimmed my hand across the surface of the creek. My palm was coated in an acrid film."

Jim Wyss, writing for the Miami Herald, in 2011:

The guide "plunges his auger into the ground. Within a few inches the dirt gives off the pungent odor of petroleum. Within a few feet the dirt glistens with oil residue. When a few handfuls of the soil are dropped into a bucket of water, a thick oil slick coats the surface."

Frank Bajak, Associated Press, 2008:

In town of Lago Agrio, the epicenter of the damage, Bajak notes that "when the sun beats particularly hot... the roads sweat petroleum."

The guide "plunges a surgical glove-sheathed hand into the muck of one waste pit. He pulls up rancid, oil-coated leaves from surrounding saplings. A pipe juts out of another pit, dripping what looks like crystalline water that reeks of petroleum hydrocarbons."

"[Lead named plaintiff Maria Aguinda] skeptically eyes the ongoing cleanup of a marsh just meters from her house, where workers dressed in oil-stained yellow overalls dredge thick black ooze into suction pipes."

"A strong petroleum smell permeates Rumipampa, home to nine families, some of whom complain of headaches."

Tom Levitt, The Ecologist, 2012:

"Billions of gallons of toxic waste from oil drilling in the 1960s, 70s, and 80s has polluted streams and rivers in the province of Sucumbios, used by indigenous communities for drinking, bathing, and fishing."

James North, The Nation, 2015:

"We set off into the rain forest. Oil pipelines of various sizes run alongside the roads; in one spot, you can count dozens of them, like strands of spaghetti. [The guide] started at Aguarico 2, a well that has been closed for years... The oil residue is still floating to the surface. Then [we] marched down a steep slope to a stream, where you could see and smell the oil as well."

Tuesday, December 1, 2015

With evidence against it in the Ecuador pollution case mounting, Chevron has turned to none other than convicted felon and former media titan Conrad Black to help it try to block indigenous villagers from enforcing their environmental judgment in Canada.

A few days ago Black published an op-ed article in Canada that repeated Chevron's talking points and viciously attacked the rainforest villagers and their counsel. The article appeared in the newspaper Black founded in 1998, The National Post. In 2007, Black was convicted on fraud charges in Chicago related to the sale of his various newspapers, which at one point comprised one of the largest English-language media empires in the world.

A jury found that Black misled investors and looted company funds to support a lavish lifestyle that included luxury homes in several cities around the world. He was incarcerated in a federal prison before being deported to Canada and barred from entering the United States for 30 years.

(For more on Black's checkered background, see this story in Vanity Fair. For a summary of the overwhelming evidence against Chevron in Ecuador, see here. For evidence of the high cancer rates caused by Chevron's pollution, see here. For a whistleblower video exposing Chevron's fraud in Ecuador, see here. For a sworn affidavit outlining some of Chevron's efforts to sabotage the Ecuador trial, see here.)

Chevron is up in arms that it might finally be held accountable in Canada and forced to pay the $9.5 billion Ecuador judgment after 22 years of playing a jurisdictional shell game. Canada's Supreme Court ruled unanimously in September that the Ecuadorians could try to enforce their judgment against company assets to force compliance with the court order in Ecuador.

The Canada Supreme Court decision has created major new difficulties for Chevron's avowed strategy to "fight until hell freezes over" and not pay the judgment it owes to those it harmed. After reviewing more than 100 technical evidentiary reports, Ecuador's Supreme Court in 2013 affirmed a lower court judgment that found Chevron had deliberately and systematically dumped billions of gallons of oil waste into streams and rivers relied on by local inhabitants for their drinking water. Cancer rates in the area have skyrocketed and untold numbers of local citizens have succumbed to the disease.

The Canada Supreme Court decision is typical in cases where a scofflaw debtor tries to evade a court judgment by selling off its assets in one country and moving them to another. That's what Chevron did in Ecuador after it fought for years to venue the trial there and accepted jurisdiction.

When a defendant loses a case and runs from the law, the judgment creditor always has a right to ask another country's courts to enforce their judgment against the defendant's assets. But according to Chevron and its new surrogate Mr. Black, an exception to this rule should be made for the long-suffering Ecuadorian villagers.

According to Black, the villagers should be blocked completely from Canada's courts.

Of course, if this were a commercial enforcement case involving one of Black's businesses that was getting stiffed in another country, he would be the first to cheer the Canada Supreme Court decision. He might consider the rank double standard he is proposing for the impoverished villagers who for decades have been victimized by Chevron's gross misconduct, as the U.S. show 60 Minutes documented in this segment.

More interesting to us is how Chevron seems to consider its options so limited in Canada that it turns to a convicted felon to argue its position in the press. Conrad Black likely was not the first person Chevron approached to write an op-ed. But he likely was the only one who agreed to do it.

Chevron recently got major egg on its face after the membership of Canadian Bar Association rejected an attempt by the company to intervene in its internal affairs and enlist the organization to file a "friend of the court" brief before the Canada Supreme Court. When Chevron's secret maneuver became public, the company was forced to withdraw the brief after it had been filed. Oops.

The enlisting of Black is not the only sign of Chevron's jitters in Canada.

The company's star witness, the Ecuadorian citizen Alberto Guerra, recently admitted lying on the stand in a farcical U.S. "racketeering" trial used by Chevron to try to taint the Ecuador judgment. In violation of federal law, Chevron paid Guerra $2 million in cash and benefits for his testimony. The company later conceded its lawyers coached Guerra for 53 days before he was allowed to take the stand. (The highly flawed decision in that case is on appeal.)

Without the discredited Guerra available to testify in Canada, Chevron has no real defense. Which is why Chevron and Mr. Black argue that Canada's courts should not take up the case at all.

For years, it has been obvious that Chevron will do virtually anything to evade paying the Ecuador judgment. That includes threatening judges in Ecuador, drowning the court with duplicative motions, presenting false testimony, paying fact witnesses, trying to bribe Ecuador's government to quash the legal case, obstructing justice, and filing retaliatory lawsuits against dozens of people who worked to hold it accountable. (For more background, see this article in the Huffington Post.)

Chevron's thinking that using a convicted felon will help improve the company's tattered image in Canada suggests a profound disconnect from reality. But it is depressingly consistent with the company's past behavior.

In 2009, Chevron used convicted drug felon Wayne Hansen in a failed attempt to entrap the Ecuador trial judge in a manufactured bribery scheme. Chevron investigators later spirited Hanson out of California to Peru to avoid a subpoena where he would have been forced to answer questions about the company's sordid attempt to undermine a trial it knew it was losing on the merits.

If Mr. Black wants to publicly debate us on Chevron's crimes and fraud in Ecuador without a company apparatchik whispering in his ear, we would be happy to make one of our advocates available.